The online journal of a crusty, longwinded trial lawyer, bemused observer of politics, and internet dilettante

Wednesday, August 13, 2003

Which headline has more sizzle: "Supreme Court strips porno-comics of First Amendment Protection" or "Man convicted because his lawyer failed to object"?

I'm very close to being an absolutist in interpreting the First Amendment as applied to prosecutions for obscenity. The US Supreme Court isn't, though, and its precedents on obscenity are all over the lot. Suffice it for purposes of this post to say, the Supreme Court still permits those prosecutions, and lower-court judges are bound to follow the High Nine's interpretation of the First Amendment.

So I'll not blog here about whether that's a good or a bad thing, because that's not what's got my goat today. What's got my goat is a piece in Franklin Harris' Pop Culture Online" entitled "High court shuns comic speech case," which came to my attention courtesy of a link from Andrew Stuttaford on The Corner.

Are you familiar with the acronym from the technical world, "RTFM"? ("Read the frinkin' manual" would be the polite translation.) Let's try on "RTFO" — "read the frickin' opinion!" — for stories about court opinions, shall we?

Here's Mr. Stuttaford's summary:

In September, 1999 Jesus Castillo sold a copy of an 'adults only' comic book to an undercover cop who clearly had nothing better to do with his time. The cop was an adult and the comic book was stocked in an adult section of the store. 'Demon Beast Invasion: The Fallen' may or may not have had its artistic or other merits (part of its plot included women having sex with, um, trees), but that apparently did not worry the prosecuting attorney. He "didn't care what kind of testimony [was] out there" because the store was across from an elementary school and "comic books, traditionally ... are for kids" and that, apparently, was that.

A dumb jury agreed and now, apparently, so has the Supreme Court.

Ridiculous.

(Ellipsis & bracketed portion by Mr. Stuttaford.) Mr. Harris' piece is consistent with Mr. Stuttaford's summary, but far more florid. It's breathlessly previewed from his homepage with this teaser, sure to strike woe into the hearts of all comic-book pornographers everywhere:

As of now, comic books are the only medium of artistic expression without the presumption of First Amendment protection. Why? Because comic books "are for kids."

He describes the fate of Ms. Castillo as a "sentence of 180 days in jail, a year of probation and a $4,000 fine."

So how big a story is this, exactly? Let's start with the breathless references to the US Supreme Court. Has the US Supreme Court said anything in this case about comics and the First Amendment?

Well, umm, no. The entire involvement of the US Supreme Court was to issue a one-line order on March 24, 2003, saying that Mr. Castillo's request for the US Supreme Court to hear the case on its merits — his "petition for a writ of certiorari," in lawspeak — was denied. Does that mean the US Supreme Court agrees with everything the lower courts did? Does it mean the US Supreme Court thinks the lower courts at least got to the right result and the conviction was fair? Is there some new legal precedent that's the law of the land? Well, no, no, and no. As a legal precedent, "cert. denied" means absolutely nothing more than that the US Supreme Court refused to make any ruling on the case except a refusal to hear it. No precedent, no national impact. The Supreme Court issues tens of thousands of these each year because it only chooses to hear a tiny fraction of the cases brought to it.

So is this at least a case about a state-wide precedent from the highest Texas court for criminal cases, the Texas Court of Criminal Appeals? Well, no — not that either, as it turns out. Just like the US Supreme Court, the Texas Court of Criminal Appeals agrees to hear only a small percentage of the many cases brought to it from Texas' fourteen different Courts of Appeals. It turned this one down on October 23, 2002 — again with a procedural device that conveys zero precedential authority to affect future cases.

So what's involved here is an opinion setting precedent from — and binding in the future only upon — the Dallas Court of Appeals (the fifth of the fourteen by district number). I can practically hear all you porno-comic readers here with me in Houston breathing a huge sigh of relief already.

Well, again, no. Mr. Castillo's actual sentence was 180 days plus the $4000 fine, but the judge showed leniency and instead of sending him to jail, gave him a year probation (that's what "180 days in jail, probated for twelve months," means; "probated for" doesn't mean "plus"). So: Zero jail time, assuming he behaves for the next year; if he violates the probation, then and only then he goes to jail for 180 days. Being on probation's not a picnic, but it beats wearing an orange jumpsuit for the next half-year and having a girlfriend named Bubba.

Fairly stiff fine, wasn't it, though? And the appellate court refused to disturb it when Castillo asked it to, right? Well yes — but not necessarily because the Court agreed with the fine. You see, Mr. Castillo's lawyer didn't ask for a court reporter to make a record of the sentencing in the trial court. That being the case, there's no way he could show the appellate court that an objection to the size of the fine had been made to the trial judge — and you have to show that you tried to fix stuff in the trial court before the appellate court will fix things for you on appeal.

Still doesn't Mr. Castillo have a felony conviction that will haunt him forever? Nope. This was a misdemeanor charge. One year in jail was the maximum punishment Mr. Castillo could have gotten — not two, as Mr. Harris reported. (Most places, misdemeanors are defined as crimes punishable by a year in jail or less, plus a fine.)

Well, okay, there's still that incredible constitutional ruling that stripped away the protection of the First Amendment from all comic books because they're just for kids, eh? Surely that's worth making a big deal about!

Except ... that's not at all what the Dallas Court of Appeals actually said. Not even close. Nowhere does the opinion suggest that any different standard applies for comic books, or DVDs, or paper napkins, than for any other publication. It gave the porno-comic at issue the exact same examination it would give to a hard-cover book, friends and neighbors, in terms of the analysis as to whether it was material that is "constitutionally obscene" under the relevant US Supreme Court decision, Miller v. California. Again, I'm not going to argue that Miller or any other of the general precedent on obscenity is well-reasoned or clear or fair. But this porno-comic wasn't given any lesser protection by virtue of it being a comic.

So how did the issue of kids come up?

In his sixth point of error, [Castillo] complains that the trial court erred in admitting testimony about the proximity of an elementary school to the comic book store. [Castillo's lawyer] filed a motion in limine [a pretrial motion] seeking to preclude the State from "making any reference or allusion to the fact that Keith's Comics ... is in close proximity to a school." In a pretrial hearing on the motion, the defense argued that such evidence was irrelevant and its probative value, if any, was outweighed by its prejudicial effect. The trial court denied the motion in limine. When the evidence was adduced at trial through Reynerson [the arresting detective], [Castillo's lawyer] did not object. It is well-settled that the denial of a motion in limine is not sufficient to preserve error for review, but rather there must be a proper objection to the proffered evidence. By failing to object when the evidence was offered at trial, [Castillo's lawyer] failed to preserve his claim for review.

It means that before the trial, Castillo's lawyer displayed the minimum sense that God gives to all mules and most defense lawyers. He had figured out that in an obscenity case where the store was near a school, where the store was filled with "'action fantasy' comic books like 'Superman' and 'Batman,' and 'action figure-type figurines'" — but in the very same room also sold explicit porno-comics of babes having hot sex with tree limbs, plus "sodomy, masturbation, excretory functions, sadism, and masochism" — the prosecutor might want the jury to wonder whether some kid is going to wander in and see this stuff. Yes, absolutely, that would be irrelevant and prejudicial, just like he said in his pretrial motion.

So didn't he lose on this issue when the judge denied his pretrial motion?

Well, again ... no. When a judge denies a motion in limine before the trial, it's the same as saying, "Make an objection to bring this to my attention later, when I know what the case is all about, and depending on the evidence then I'll make a decision." This happens all the time, every day, to every trial lawyer in every kind of case, civil and criminal. Judges don't like to pre-commit on one piece of evidence before they've heard any evidence, for understandable reasons. In fact, usually lawyers expect to lose pretrial motions like this, but they file them anyway because they want to bring the hot topics to the judge's attention before the trial, so he'll be listening closely and thinking about it, waiting for that timely objection during the actual testimony before the jury.

So the first time the prosecutor started inching into his "kids" routine, what did Castillo's lawyer do? Did he leap to his feet and say, "Your Honor, may I approach the bench?!?" like they do every Sunday night on "The Practice"?

No, he kept his mouth shut and his butt in his chair, and he let it all come into evidence without objection. That, friends and neighbors, is what's called "a waiver."

Well. Duh. Was he asleep? Was it a tactical decision that he figured would backfire on the prosecutor? (We've all seen that on "The Practice" too, ya know — defense lawyer pulls the chestnuts out of the fire with a great closing argument that turns the tables on the really prejudicial evidence by appealing to the jury's own sense of what's relevant and what's mere grandstanding.) I dunno. Neither did the Dallas Court of Appeals. All they know, and all I know, is that for whatever reason, the prosecutor got away with more than he should have because the defense lawyer didn't object. Stuff like that happens. Dog bites man, whadya gonna do?

There was, by the way, a dissent from one of the three judges on the Dallas Court of Appeals panel. He thought the prosecution failed to present enough proof that Castillo actually knew what was in the porno-comic. The jury, and the trial judge, and the other two appellate judges thought otherwise. Eh. I dunno, I haven't read the transcript of the entire trial, of course, but the testimony discussed in the majority and dissenting opinions doesn't leave me particularly outraged — not enough to jump to the conclusion that the jurors, the trial judge, and the two appellate judges in the majority were clearly and unequivocally wrong. Judges, especially appellate judges, generally cut juries a lot of slack on this sort of factual issue.

Was perfect justice done (assuming that perfect justice is even possible under the current state of Supreme Court obscenity precedent)? Again, I dunno; maybe not. But ya know, if I spend a lot of time worrying about every absolutely routine probated misdemeanor conviction up in Dallas where there's no new precedent set, it makes me lose sleep, which makes me grumpy, and then I growl, and people won't smile at me in the elevator, and I have a hard time keeping up with important stuff — like significant court opinions that do make new law.

Unfortunately, exploding myths and distortions like this takes scads of prose — a good sizzling set of lies can be much briefer. I certainly don't fault Mr. Stuttaford, who probably took on faith what looked to be a credible report from Mr. Harris, who in turn probably believed what some of the people involved in the case, or who have an axe to grind, told him about it.

But golly gosh Jeebus, is it too much to hope that before everyone's knickers get all twisted over the death of the First Amendment (as applied to porno-comics), someone in the loop should actually RTFO?

Mr. Harris' blog, Franklin's Findings, has a post which accurately asserts, with links, that "[o]utrage over the Jesus Castillo case is spreading to blogs left, right and points between." Unfortunately, IMHO the outrage is the product of a profound misunderstanding of the case, for the reasons I posted above last night.

Mr. Harris was kind enough, however, to add an update with a link to my post from last night:

UPDATE: Houston attorney William J. Dyer, however, begs to disagree. I think he greatly overstates his case. For example, he makes much of the fact that it is unremarkable for the U.S. Supreme Court to refuse to hear a case -- a point I myself note in the second paragraph of my column. Also, he focuses exclusively on issues raised at the appellate level, while I and other critics of the decision have focused solely on the arguments presented at the trial phase.

Mr. Harris did indeed note in his original piece in his "Pop Culture Online" blog that the US Supreme Court's decision not to hear the case "is unsurprising, given how few cases the court agrees to review," but he followed that by claiming that

... it leaves a dangerous precedent unchallenged.

As of now, comic books are the only medium of artistic expression without the presumption of First Amendment protection. Why? Because comic books "are for kids."

And that's what's so badly wrong about his original article, and why all the "outrage" is unjustified: There's no such "precedent" from the Castillo case!

Decisions of state trial courts in Texas and most other states have zero precedential value. They are not binding on, nor usually even persuasive to, any other trial judge. When trial judges want to know what "the law" is, they look exclusively to the reported written opinions of appellate courts, starting with the lowest-level appellate courts (like the Dallas Court of Appeals that wrote Mr. Castillo's opinion) and proceeding up the chain (in this case, through the Texas Court of Criminal Appeals and US Supreme Court, neither of which agreed to reconsider the merits of the Dallas Court of Appeals' decision).

No lawyer from either side of any future case is likely to be citing the Dallas Court of Appeals' opinion in Castillo v. State as precedent on anything, nor is any trial judge likely to look to it as precedent, because the various rulings contained in that opinion are all settled law that simply track older, higher authorities than the Dallas Court of Appeals. And they're certainly not going to cite it as precedent to say "The First Amendment doesn't protect comic books" — because it doesn't say that! In fact, if anything, it strongly implies exactly the opposite, because the Dallas Court of Appeals used the exact same analysis for this comic book that it would use for any adult hardback book.

So the only possible interest the trial court's rulings and the jury's decision in this case have is if, as Jim Henley from Unqualified Offerings has suggested be done, you're trying to figure out how to do a better job defending cases like this, as a purely practical and tactical matter, in the future. Again, I've not read the entire trial transcript, and I obviously wasn't there, and I don't know the lawyers on either side. The Dallas Observer ran an article, linked from Mr. Harris' original piece, which had this to say about Mr. Castillo's trial counsel:

Shunatona says he was picked to defend Keith's because he shops there. He admits reading Frank Miller's Dark Knight series instead of studying for the Bar exam. "I've had my kids in there," he says of the store. Shunatona is a former prosecutor with one obscenity case in his background, the prosecution of a dildo's owner. The outcome? "Actually, it was a hung jury," he says. (It's impossible not to laugh at him when he says this.)

But I don't mean to dump on Mr. Shunatona or to suggest that he necessarily dropped the ball. Sometimes good lawyers lose cases, that's life — dog bites man, no news there. Subjective factors like witness credibility can make a huge difference. The difference between "competent and persuasive" on the one hand, and "arrogant and offensive" on the other, is purely subjective — and while one could guess from the outcome in this case that the jury had the former assessment of the police detective and the latter assessment of the college professor "expert witnesses," that'd be nothing more than a guess.

Let me venture a really contrarian opinion: This case should be encouraging to those who disapprove of obscenity prosecutions in general. Why? Because to get a conviction, the Dallas County DA apparently concluded that she needed more than just what was in the comic book. Even in conservative Dallas, Texas, she figured that she needed to get the jury's thinking out of "private activities of consenting adults"-mode and into "my god, what if my kid sees this on the way home from school"-mode.

Paradoxically, as it happened, the prosecutor was able to use the fact that this comic book was on an "adults-only" shelf (albeit not in a separately access-controlled area), and that it had a front-cover label with "Warning! Absolutely not for children!" as evidence that was indeed relevant and admissible because it tended to show that Mr. Castillo, the store clerk, had knowledge of the obscene contents. (Amazon has an enlargeable thumbnail of the book cover, as per Mr. Harris' link.) Those facts also tended to make the jury worry about exposure to kids — even though this was not a prosecution for corrupting the morals of children, and no showing was ever made that a child had purchased or had seen this material.

The proximity of an elementary school, by contrast, had no such relevance, and was purely an attempt to play to the jury's prejudices, which is why Mr. Castillo's lawyer made that specific objection; however, apparently the prosecutor got away with that bit of mischief during the trial based on Mr. Castillo's lawyer's failure to renew his pretrial objection. Once it's in evidence, it's more or less fair game for the prosecutor to conflate various issues in closing argument — hence the "we all know comics are for kids" argument. (Mr. Stuttaford, by email back to me, points out his concern with this prosecutorial overreaching, which I share, but would categorize as mild in comparison to other stuff that goes on daily in the real world; keeping that stuff in reasonable check is why God made defense lawyers.)

So to repeat, the good news for fans of the First Amendment here is this: To win this case, the prosecutor had to cheat (or pretty close to it) by injecting the issue of the material's possible exposure to children. It probably is true that comic books are more often likely to be subject to that tactic than XXX videos and DVDs and magazines commonly sold or rented in access-controlled areas. So what's the moral, boys and girls? Put your porno-comics back in the separate room, behind the magneto-controlled remote-activated locked door, along with your porno movies and mags — not in a place where jurors are likely to imagine little Timmy and Jill wandering in after school.

"Ampersand" of Alas a Blog, who had previously blogged an eloquent piece to point out that there's less here than meets the eye and no need to panic, was also kind enough to link to and reference my post, and offers some thoughtful observations that might relate to future such prosecutions. He also suggests, and I tend to agree, that those trying to "help" from out of state may have done more to harm than to help on a practical basis. A follow-up Dallas Observer article reports that Mr. Castillo's $60,000 (*cough*gulp*cough!) in legal fees were paid by the "Massachusetts-based Comic Book Legal Defense Fund," and that his fine was paid "using money donated by shop customers and other local supporters"; that's very nice, but I strongly suspect that the net effect of their participation was to guarantee that the Dallas County DA's office took this case rather more seriously than it would otherwise.

But I tend to bristle when "Tom Tomorrow" of This Modern World badly misstates what happened in this case, and then concludes with:

Apologies to the decent, thoughtful, intelligent people who live in the Lone Star state — a category which actually includes several friends of mine — but these Texas pigstickers are really starting to get on my nerves.

That, friends and neighbors, is uninformed regional bigotry, for which Mr. Tomorrow's apology — essentially "Some of my best friends (believe it or not!) actually live amongst those savages!" — isn't quite adequate. And widespread propagation of blatant misreporting about the facts and law in this case leads to more such bigoted and ill-informed spite, the likes of which one finds in the comments to Atrios' equally misleading post on Eschaton.

That's what gets my goat, down here in pigsticker land. All I can say again is, when it comes to blogging about legal events: RTFO!

*******

UPDATE (Fri Aug 15): Professor Eugene Volokh of The Volokh Conspiracy — one of my absolute favorites and a role-model — blogged about this case today. To his great credit, he not only corrected a serious misstatement about the case within an hour of receiving emails about it from me and another reader, but did so in a conspicuous manner. He was also kind enough to link this post as part of the correction, so: Hello Volokh Co-Conspirators!

Jim Henley's Unqualified Offerings has another lengthy and thoughtful update post about the case, with another shorter one that references some of my updates. His approach is as a nonlawyer who's a defender of comics and a foe of obscenity laws, and notwithstanding the explanations and comments from lawyers like me, he's understandably left in a state of concern — albeit hopefully a lesser one than when he was under the misimpression that this case represents some powerful legal precedent that will affect other, future cases. His lingering unease is justified, however — yes, this could happen again, in Texas or just about anywhere else, so long as Miller v. California is the law of the land. But one could hardly have picked a less appealing candidate than this case as a vehicle to persuade the US Supreme Court to make new law — not because poor Mr. Castillo isn't sympathetic, but because there are so many other explanations for his conviction in addition to the fundamental flaws in Miller's scheme for regulating obscenity under the First Amendment.

*******

UPDATE (Sat Aug 16): As indicated in the Trackback below, Amp has many more links, lots of which appear to go to discussions that get into the broader questions about obscenity generally. I enjoy reading civil discussion of these issues — the one on Journalista! The Comics Journal Weblog being a very fine example (and one that was nice enough to link this post and express agreement with my distaste for some of the bigotry in other discussions, thank you Dirk Deppey). Julian Sanchez' arguments in Notes from the Lounge are also quite eloquent, although I disagree with his argument that comics are being especially picked on. It's disappointing that so many other defenders of the First Amendment, though, can't express their thoughts without profanity or very personal attacks, which simply reduce their credibility.

UPDATE (Mon Aug 18): I'm disappointed to see that another of my heroes, Walter Olson of Overlawyered, has picked up this story in its original, overblown version as published by Mr. Harris and Mr. Henley, both of whom have — to their credit — posted later corrections (already linked above) that Mr. Olson apparently missed. Updated update: I am reassured, but unsurprised (given my confidence in his scrupulous attention to facts): Like Professor Volokh, Mr. Olson issued a very thoughtful correction within a couple of hours after being contacted. Thank you, sir.

Meanwhile, from far less reputable sources, the hysterical (in both senses of that word) propagation of misinformation continues. By far the least accurate report I've seen yet about this case is a piece by Frank Beaton, a "local freelance writer" whose article about this case appears in something called "Las Vegas Citylife." Other than the statement that he is "but a lowly journalist and not versed in matters of law," he appears to have gotten just about all his other significant facts wrong, and he manages to incorporate vulgar and ill-informed regional bigotry into both the article's title and concluding paragraph.

Comments

Okay, it's one thing to send a guy to jail for selling and adult comic to an adult, but he probably wouldn't have gotten screwed if his bonehead defense had come up with a better arguement then the idea that a comic book about women getting penetrated by alien tree roots has any artistic merit.

The lawyer could have also argued that the obscenity law was unconstitutional. He also should have objected to the idea that comic books are for kids, since there have been porn comics around since the post war era.

As an otaku (slang for anime fan), it also worries me that they can prosecute this guy just for selling it. Are they also going to go after the guys that publish and create it? How about the people who buy it for their own private use?

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